Matter of an application by Mellor, S. for enquiry into an election in the Federated Liquor & A.I.E.U. of Australia

[1987] FCA 345

Re: IN THE MATTER of an application by SHIRLEY MELLOR for an inquiry into an
election in the FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES UNION OF
AUSTRALIA
No. Q6 of 1986
Industrial Law
18 IR 350

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organization - election - arrears of contributions - power to cancel - presumption against retrospectivity - whether applicable to rules.

Conciliation and Arbitration Act 1904

HEARING

BRISBANE

#DATE 15:5:1987

Mr. Shaw Q.C. with Mr. Marshall for Messrs. Elton and Hardie. Instructing Solicitors: Carberry & Co.

Mr. Bickford of Counsel for Australian Electoral Commission. Instructing Solicitors: Australian Government Solicitor.

Mr. Channell for Federated Liquor and Allied Industries Employees Union of Australia. Instructing Solicitors: Hawthorn, Cuppaidge & Badgery.

Mr. Grace for Ms. Mellor, Mr. Bell and Ms. Que. Instructing Solicitors: Cooper, Grace & Ward.

JUDGE1

The short point to be decided in this case is whether a resolution passed on 15th April 1987 by the Queensland Branch Committee of Management of the Federated Liquor and Allied Industries Employees Union of Australia ("the organization"), to cancel arrears of contributions of certain members, has retrospective effect so as to make those members financial as at 26th November 1986.

1. On 26th November 1986, the Court found that irregularities had occurred in or in connection with the elections for the offices of State Secretary/Treasurer and Assistant State Secretary/Treasurer in the Queensland branch of the organization. The Court declared the ballot conducted in and about July 1986 in those elections void and directed the conduct of a new ballot. Directions were given as to how the new ballot should be conducted. Among those directions was the following:
   
   

"3. The persons eligible to vote be members of the Federated Liquor and Allied Industries Employees Union of Australia in its Queensland branch who are financial in accordance with the rules as at 26 November 1986."

1. Following those directions and others subsequently given, a roll of voters has been prepared. The ballot opened on 1st April. It was to close on 30th April but was extended to 14th May by subsequent direction for reasons which are not relevant here.

2. On or about 13th April Mr. Horn, who has supplied the names for inclusion on the roll of voters, received a letter from a Mr. Russell Dummett. That letter contained a request that Mr. Dummett be placed on the roll of eligible voters for the current election. In it, Mr. Dummett claimed that he was unable to pay his union dues for the half year ending 31st December 1986 prior to 26th November 1986, because a union delegate at his workplace, to whom he normally paid his dues, resigned on 5th November 1986 and was not replaced until 18th November 1986. According to the letter, the delegate who replaced him did not, at the relevant time, have a ticket-book and was unable to take Mr. Dummett's money.

3. As a result of further investigations, Mr. Horn found that a number of members employed with Mr. Dummett at the Castlemaine Brewery at Milton, who were longstanding members, had not paid their contributions in respect of the half year ended 31st December 1986 before 26th November 1986, because of the difficulty involving a changeover of delegates.

4. On 15th April 1987, a special meeting of the branch committee of management was held.

5. That meeting resolved as follows:
   
   

"The Committee of Management notes the correspondence from R Dummett and the submissions made by him on behalf of other members employed at Milton Brewery. The Committee accepts the evidence put before it by member R Dummett on behalf of Delegate H Van Trier, and by the Acting Secretary in respect of the normal practices which are followed regarding payment of dues and issuance of membership tickets at Castlemaine Brewery and the circumstances which existed in the latter part of 1986.

The Committee, as a matter of principle, believes that the Union's Rules should not be interpreted in such a manner as to be oppressive against the Union's members and in particular should not be administered in a way which would affect the continuity of membership of certain members at the brewery.

The Committee therefore resolves, in accordance with powers vested in it under Rule 16 of the State Branch Rules, to cancel any arrears of contributions as existed at any time in respect of payment of membership dues by those members (named below) for the second half of 1986 and declares these members to have not been in arrears at any time in respect of their membership dues for that half-year.

The members from Castlemaine Brewery to whom this resolution applies are. . .".

There follows a list of 43 names and addresses. On the same day, Mr. Horn wrote to the Returning Officer certifying that list of members as being financial as at 26th November 1986.

1. A ballot paper has been forwarded to each of the 43; subsequent correspondence has passed between Mr. Horn and the Returning Officer to which I need not refer. The Returning Officer is uncertain whether to count the votes from those 43. He is inclined not to do so. The parties seek a direction as to whether they should be counted. Because of directions made on 26th November 1986, it is possible to separate from the other ballot papers any which come in from those 43, without compromising the secrecy of the ballot.

2. The matter came before me on Tuesday, 12th May 1987 at Brisbane. The Court has been assisted by submissions from Mr. J. Shaw Q.C. and Mr. Marshall on behalf of Messrs. Elton and Hardie, candidates in the elections, Mr. Bickford of counsel on behalf of the Returning Officer, and Mr. Grace on behalf of the applicant, Ms. Mellor, Mr. Bell and Ms. Que, also candidates in the elections. Mr. Channell appeared on behalf of the organization and sought an opportunity to obtain instructions and to make written submissions. That opportunity was given and written submissions have been received on behalf of the organization.

3. It is necessary to set out some provisions of the rules which may be applicable or may explain the situation. In rule 2 of the federal rules there appears a definition of financial member:
   
   

"Financial Member" means a member who is less than three months and one day in arrears in contributions which amounts shall apply to any subscription, fine, levy or dues imposed on him or her in accordance with these rules."

1. In federal rule 9(d) (ii) and branch rule 19(d) (ii), minimum rates of contributions are fixed by reference to yearly, half yearly and quarterly amounts. There is also provision for weekly or monthly deductions but that need not be considered in the present case. Federal rule 9(f) and branch rule 19(f) each provide that every member shall pay such other fines, fees, levies and dues as may be prescribed by the rules for the time being of the organization, or which from time to time may be imposed by the council. Under federal rule 9(h) and branch rule 19(h) all subscriptions, fines, fees, levies or dues may be paid by any member to any of the authorized collectors or to the secretary of the branch to which the member is attached, but to no other person or member.

2. Branch rule 5(2) (d) (iv) contains a provision that only those members who are financial members at the end of the quarter immediately preceding the opening date of nominations shall be entitled to a ballot paper. That provision would be applicable in a normal election but its effect must be modified by the directions given on 26th November 1986 as to the conduct of the present ballots.

3. The important provision for the purposes of this case is found in branch rule 16, which deals with the committee of management of a branch. Among the powers of a branch committee of management there is a power to cancel the whole or part of members arrears of contribution, fines or levies. It is that power which the branch committee of management purports to have exercised in the present case.

4. Federal rule 37(c) and branch rule 30(c) provide as follows:
   
   

"Notwithstanding anything contained in sub-rule (a) of this rule and three months after this amendment is certified, any member in arrears for three months and one day with respect to contributions, fees, levies, fines or dues shall lose all privileges of membership and shall be liable to be sued for such arrears without notice."

The rules do not provide expressly when contributions are payable. It seems to be assumed that they are payable in advance in respect of a calendar year the half years ending 30 June and 31st December, or the quarters ending 31st March, 30th June, 30th September and 31st December. These assumptions have been adopted in the preparation of the roll of voters and I adopt them for present purposes.

1. I also assume that the power in rule 16 of the branch rules is of general application and is not restricted to the specific powers of a committee of management in federal rule 9(k), (m) and (n), relating to members out of work, sick or unemployed. Mr. Bickford submitted to the contrary, that it is unnecessary for me to decide that question.

2. Similarly, I assume for the purposes of this case that the resolution of the branch committee of management of 15th April was bona fide and based on proper grounds. The bona fides of the committee of management were not challenged, but Mr. Grace put forward some arguments which might be thought to go to the grounds on which the resolution was based. The committee of management was not represented in the present case and it would therefore be inappropriate for me to make some determination about the grounds on which the resolution was based. In any event there is insufficient evidence before me to attack those grounds.

3. There can be no doubt that the resolution of 15th April purports to be retrospective. In its terms it declares the members concerned to have not been in arrears. The question is whether branch rule 16 gives the committee of management the power to make this declaration.

4. Mr. Shaw placed heavy reliance on the presence of the word "cancel" in branch rule 16. His argument was that the word "cancel" means to render void. He referred to definitions in the Shorter Oxford Dictionary and Stroud's Judicial Dictionary. The Shorter Oxford Dictionary gives as a figurative meaning of the word "cancel" "to render void", and as a general meaning "to obliterate, to put an end to". In Stroud's Judicial Dictionary there is a reference to the possibility that the word "cancel" sometimes means "to become void". It is by no means clear in any of these definitions or authorities that the word "void" means void ab initio, i.e., as if it had never existed. It is quite possible that the word "void" may mean void from the date when the act of cancellation takes place. This was certainly so in Adamson v. Newcastle Steamship Freight Insurance Association (1879) 4 QBD 462, especially at p 464 per Manisty J., that being one of the authorities cited in Stroud's Judicial Dictionary. I am therefore by no means satisfied that the use of the word "cancel" in branch rule 16 requires me to take the view that arrears which are cancelled are treated as if they had never existed.

5. It is clear that the presumption against retrospectivity may apply to the rules of an organization. As Spicer C.J. and Eggleston J. said in Davis v. Pulp and Paper Workers Federation of Australia (1963) 8 FLR 277 at pp 280-281:
   
   

"The rule of construction against retrospective operation which applies to statutes does not, of course, directly apply to the rules of an organization. But the rule applicable to statutes is based on the presumption that the legislature does not intend what is unjust (see Doro v. Victorian Railways Commissioners (1960) V.R. 84, at p. 86), and somewhat similar considerations must apply to the construction of the rules of an organization such as this, particularly where the injustice of the rule may be a statutory ground of invalidity."

Their Honours went on to hold that injustice would be involved in the application of a rule retrospectively in that case. The presumption against retrospectivity may be overcome by clear words, or may be held not to apply in the absence of harsh effects or interference with vested interests or accrued rights, see Doro v. the Victorian Railways Commissioners (1960) VR 84 at p 86.

1. Mr. Shaw's argument in the present case concentrated on the beneficial effect of the rule. As he put it, the exercise of the power to cancel arrears confers the right to vote on the maximum number of persons, rather than denying it. It is clear that retrospective operation of the rule in the present case would give the vote to a greater number of people. The rule, however, is one of general application. A cancellation of arrears retrospectively would have effects otherwise than on voting in elections. For example, rule 14B in the federal rules relates to ceasing to be eligible to hold office, and provides that a person holding certain office as referred to in federal rule 11 shall cease to be eligible to hold such office if he or she ceases to be a financial member of the union. It would be strange if a person ceased to hold office for that reason and the office were filled and then a branch committee of management could cancel retrospectively the arrears of such person and render him or her financial as if he or she had never been unfinancial. Similarly, in elections under branch rule 4, candidates are required to be financial members of the union. It would also be strange if after the conduct of an election a branch committee of management could render retrospectively financial a candidate who could then claim that his or her nomination had been incorrectly rejected. Clear words in the rules may produce such results, subject to the effects of s.140 of the Conciliation and Arbitration Act 1904, but in my view an ambiguous rule should not be so construed.

2. In the present case, no problems arise if the rule is construed as operating so that any cancellation of arrears is prospective only. On the facts in the present case, there would be some unfairness if the assumption which arises from the orders made on 26th November 1986, that all persons who were financial at that date should be entitled to vote and therefore all persons who were not so financial should not, were not to be followed. Indeed, it might be said that in the present case retrospective operation of branch rule 16 may be such as to overturn accrued rights. Persons who were financial as at 26th November 1986 might be said in a sense to have the right to claim that only they should be the ones entitled to vote in these elections.

3. For these reasons, I direct that the Returning Officer not open or count as a valid vote any ballot paper returned from any of the persons whose names appear in the list in exhibit "B" to the affidavit of Noel Rawle Horn sworn on 28th April 1987, and filed herein.